Quint’s Duty to Brody and Hooper on the Orca as a Common Carrier

June 24, 2015

Jaws is not just the story of a killer shark, a career-ending political cover-up, and two boys who cause a mass panic at the beach, but the liability of a common carrier. The movie is one giant bar exam for would-be lawyers to bite down hard and thrash about on.

Quint was contracted by the Chief Martin Brody (after forcing Mayor Vaughn after the 4^th of July shark attack to approve the funds) to kill the shark. Quint took Chief Martin Brody and Matt Hooper on the Orca for the “Sea Hunt.”

The fact Quint took passengers for hire on the Orca would make the vessel a “common carrier” under the law engaged in commercial fishing. Common carriers in Massachusetts, “owes to its passengers the highest degree of care in the anticipation and prevention of violence from its employees, other passengers, and even strangers, as is consistent with the nature and operation of its business. The test is foreseeability of harm, but the carrier is not an insurer of the safety of its passengers, nor is it obliged by law to foresee and to guard against unlikely dangers and improbable harms. Quigley v. Wilson Line of Massachusetts, Inc. 338 Mass. 125, 128 (1958) (Citations omitted).

Quint grossly violated his duty of care to his passengers after finding the shark. Despite the fact Quint needed a bigger boat, he continued following the shark out to sea. Quint continued to hunt the shark after the night attack on the vessel, which broke multiple planks below the waterline, causing flooding in the engine compartment.

Quint took two intentional actions that demonstrated total disregard for the safety of his passengers: 1) destroying the radio with a baseball bat and 2) burning up the bearings in the main engine by cruising at full speed with the engine compartment flooding. These two actions rendered the vessel non-operational and destroyed their ability to call the Coast Guard for help.

Quint’s actions were intentional that risked the lives of both Brody and Hooper. A jury would take a bite out of Quint’s Bumbershoot Policy and rightly attached punitive damages that would sound like nails on a chalkboard for his intentional conduct. Moreover, the Coast Guard would pull his Master’s License for such dangerous actions. However, this is moot a point considering the shark took a love bite out of Quint.

The Fake Shark Fin of Panic at the Amity Beach

Josh Gilliland

June 20, 2015

The movie Jaws tells a tale of two brothers with a shark fin who scare the heck out of a lot of swimmers. Naturally, the younger one blames the older one after they are caught causing a panic at the beach.

The boys committed the crime of disorderly conduct. The law states that:

A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior; or (b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor”

Commonwealth v. Feigenbaum 404 Mass. 471, 474 (1989), citing Commonwealth v. A Juvenile, 368 Mass. 580, 587-597 (1975).

The boys acted with purpose to cause alarm with all the swimmers in the water that created a hazardous condition in the form of a panic as all the swimmers left the water. There was absolutely no legitimate purpose to their actions.

While Massachusetts law does not specifically address a panic with a mass evacuation, Oregon law has the following statute:

(A) No person shall cause the evacuation of any public place, or otherwise cause serious public inconvenience or alarm, by doing any of the following:

(1) Initiating or circulating a report or warning of an alleged or impending fire, explosion, crime, or other catastrophe, knowing that such report or warning is false;

(2) Threatening to commit any offense of violence;

(3) Committing any offense, with reckless disregard of the likelihood that its commission will cause serious public inconvenience or alarm.

ORC Ann. 2917.31.

The boys’ actions of entering a swim area with a shark fin could qualify as an “offense, with reckless disregard of the likelihood that its commission will cause serious public inconvenience or alarm.” Their plan was to scare people. This action caused “alarm” as people rushed out of the water. This action would violate the statute and would be a misdemeanor. ORC Ann. 2917.31(B)(2).

The boys would not be tried as adults, but there is no doubt the juvenile court would throw the book at the boys for causing a panic with a fake shark fin. Moreover, the parents could be sued civilly for their children’s conduct, which would likely put their home in jeopardy as the main funding source for damages.

Employee Safety at Jurassic World

Josh Gilliland

June 18, 2015

How can an amusement park with a zoo full of dinosaurs ensure the safety of their employees?

Jurassic World is not just a story of survival for when Man Plays God with Nature, but one of employee safety. This film must be especially freighting for OSHA inspectors.

InGen might have selected Isla Nublar not just for its tropical environment for the genetically engineered dinosaurs, but as a way to escape US laws on employee safety. Shipping companies have registered vessels in foreign ports for decades to avoid US law. US companies open factories in other countries, so they can pay overseas employees a fraction of what they would pay a US employee with none of the strict safety laws. InGen attorneys could have used a similar strategy to limit liability for employees who are killed or maimed by a dinosaur.

All states in the United States have laws on employee safety. California law states:

(a) Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.

(b) On multiemployer worksites, both construction and nonconstruction, citations may be issued only to the following categories of employers when the division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the division:

(1) The employer whose employees were exposed to the hazard (the exposing employer).

(2) The employer who actually created the hazard (the creating employer).

(3) The employer who was responsible, by contract or through actual practice, for safety and health conditions on the worksite, which is the employer who had the authority for ensuring that the hazardous condition is corrected (the controlling employer).

(4) The employer who had the responsibility for actually correcting the hazard (the correcting employer). The employers listed in paragraphs (2) to (4), inclusive, of this subdivision may be cited regardless of whether their own employees were exposed to the hazard.

Cal Lab Code § 6400.

The Jurassic World paddocks were specifically designed for different dinosaurs to keep them from injuring employees and guests. However, the escape of the Indominus Rex, which resulted in the breach of the aviary, thus freeing Pterodactyls and Dimorphodons, which resulted in a mass casualty event for employees and island guests, equivalently highlights the dangers of working at the park.

Employee deaths at Jurassic World included two men at the Indominus Rex paddock, nearly the entire Asset Containment Unit killed by the Indominus Rex, the two ACU team members killed in the helicopter crash (caused by the CEO Simon Masrani, who was not a licensed helicopter pilot, thus recklessly endangering the lives of those flying with him), at least one employee by the old Jurassic Park entrance, and a substantial number of the InGen private security team killed by Raptors.

Masrani’s helicopter flight was the tipping point that put over 21,000 lives at risk. An unlicensed pilot should not have taken off with passengers for a combat mission to kill the Indominus Rex. The engagement ended with driving the Indominus Rex into breaching the aviary, which resulted in the loss of the helicopter after a mid-air collision with a Pterodactyl. The guest and employee casualties from the Pterodactyls and Dimorphodons would not have happened “but for” the crash of Masrani’s helicopter. Calling in additional forces would have been the reasonably prudent decision for keeping everyone at Jurassic World safe.

Perhaps the cruelest employee death was Zara, Claire’s personal assistant who was relegated to keeping an eye on Claire’s nephews Grey and Zach. It is a good bet Zara’s scope of employment did not include playing nanny, which ended with her being abducted by a Pterodactyl, dropped into the Monsasaurus tank, abducted again by a Pterodactyl, and then eaten by Monsasaurus. This highlights Jurassic World was neither “safe” or “healthful” for employees if they could become a hot lunch for escaped dinosaurs. Moreover, Zara might have had a discrimination claim based on national original that British women are inherently nannies.

These deaths and injuries were all connected by the escape of the Indominus Rex. Jurassic World scientists literally and figuratively created the hazard of the Indominus Rex. The hybrid dinosaur would not have existed “but for” Jurassic World creating the creature with unknown physical abilities, heighten intelligence, and increased aggression from both “nature” and “nurture.” The fact the creature existed was a threat to employee safety.

A less dramatic issue of employee safety was the pig wrangler at the Raptor paddock. An employee who attempted to catch a running pig was pulled off a catwalk and landed in the Raptor pen. This entire high-risk activity could have been avoided if the pig wrangler had been clipped to a safety cable above the catwalk with a fall restraint in the event of being pulled over the side. The cost of installing these devices would be insignificant compared to a lawsuit for an employee eaten alive by Raptors.

Juris Rex: Jurassic World Class Action Litigation

Josh Gilliland

June 15, 2015

Bringing the magic of dinosaurs to life has a high price when it comes to the safety of those visiting Jurassic World. Corporate counsel would have a nervous breakdown with the class action that would soon hit InGen like an Ankylosaurus after the events in the movie.

As InGen’s genetics lab was based in Palo Alto, California (at least in the original book), we will apply California law for our analysis.

InGen attorneys likely had a choice of law and forum selection clause in their travel packages to Isla Nublar off Costa Rica. A prospective forum selection clause for Jurassic World would ideally be in a venue that would be friendly to an amusement park-zoo with dinosaurs, likely with a statutory cap on damages. InGen attorneys might attempt a bold legal move and require all cases would to be brought in Costa Rica.

Attempting to bind all possible dinosaur-injury litigation to Costa Rica would fail. First, California Courts may “exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Cal Code Civ Proc § 410.10. Moreover, if the tickets for Jurassic World required litigation to be in Costa Rica, that clause would serve as a “functional equivalent of a contractual waiver of consumer protection” and would be prohibited by California law, thus rendering the forum selection clause unenforceable, because “rights of California consumers would be substantially diminished if forced to litigate in” a remote venue. Clark v. First Union Securities, Inc. (2007) 153 Cal.App.4th 1595, 1613, citing America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1.

Failure to Protect Attendees from Harm as a Common Carrier

There are key moments after Indominus Rex escaped her paddock that Claire Dearing did not order the evacuation of the island. A containment team was instead sent with non-lethal weapons to capture the escaped Indominus Rex. After the mission failure, all park attendees were moved to a central area, where they became a giant target.

Litigation would focus on Claire’s decisions which ultimately resulted in a mass casualty event.

A trial attorney would build the following case theme: Attendees arrived at Isla Nublar by InGen ferry. The ferries were the sole way for guests to travel to or form the island. As such, the guests were totally under the care of Jurassic World, since there would be no way to escape the island without an InGen ferry.

These facts make a very strong case that Jurassic World was a common carrier, not just a zoo where attendees were business invitees, effectively making attendees “passengers” until their return to Costa Rica by ferry.

A common carrier is normally a boat, train, bus, or plane that is a carrier of persons for “reward” (payment). Cal Civ Code § 2100. A common carrier “must use the utmost care and diligence for [the passengers] safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” Id.

Amusement parks with roller coasters have been found to be common carriers under Cal Civ Code §§ 2100 and 2101. Gomez v. Superior Court (2005) 35 Cal 4th 1125 (in a case about an injury on the Indiana Jones ride at Disneyland).

Everyone who was on Isla Nublar arrived there by ferry (which is a traditional common carrier); Jurassic World’s operations were overseen by a control room of InGen professionals to ensure the safety of the attendees from the dinosaurs; and InGen employed a paramilitary strike team to subdue escaped dinosaurs.

All Jurassic World attendees were trapped on an island with a rogue dinosaur on a murder-feeding frenzy. The island itself was a giant rollercoaster where attendees were totally under the care of Jurassic World. As such, a good lawyer could establish that Jurassic World owed its attendees the “utmost care and diligence” and had to exercise a reasonable degree of skill. Not ordering an evacuation was a failure to provide the “utmost care and diligence” to the park attendees.

Liability for Dinosaur Attacks

The law requires that the owners of domesticated animals must protect third parties from animal known to have “vicious habits or disposition.” Gooding v. Chutes Co. (1909) 155 Cal. 620, 623. As such, where a new zoo employee was bitten by a camel known by others to have “vicious habits,” the zoo was liable for the employee’s injuries.

Dinosaurs would likely not qualify as domesticated animals, but the triceratops pony rides in the petting zoo demonstrate some domestication. Moreover, the dying Apatosaurus showed signs of being comforted in its final moments. Finally, “Team Raptor” demonstrated Raptors could work with humans, but with great risk of turning on humans.

The Indominus Rex without a doubt had “vicious habits or disposition” that was known by Jurassic World employees. The fact the creature escaped and no evacuation was ordered puts Jurassic World in the hungry jaws of plaintiff lawyers for their failure to protect attendees.

Property Liability for Indominus Rex

Plaintiff attorneys would argue that Jurassic World was negligent as a property owner for the failure to use “reasonable care to keep the property in a reasonably safe condition.” 1-1000 CACI 1001. Moreover, this duty required Jurassic World to “discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others.” Id. The failure to warn of the risk of the escaped Indominus Rex was an unsafe condition that put attendees at risk.

A jury would consider these factors in deciding whether Jurassic World exercised reasonable care per the California Jury Instructions:

(a) The location of the property;

The fact Isla Nublar is over 100 miles off Costa Rica with dangerous dinosaurs will not end well with a jury for the Defendant.

(b) The likelihood that someone would come on to the property in the same manner as the Plaintiffs did;

Jurassic World was an amusement park, thus a high likelihood all vistors would enter the property the same way.

(c) The likelihood of harm;

The “likelihood of harm” includes being either eaten or stepped on by a dinosaur, which was well known thanks to the first three movies.

(d) The probable seriousness of such harm;

A jury would not need any expert testimony on the probable seriousness of being eaten by a dinosaur.

(e) Whether Jurassic World knew or should have known of the condition that created the risk of harm;

There is no question of knowledge of the risk.

(f) The difficulty of protecting against the risk of such harm; [and]

Humans engaging dinosaurs in combat was proven to be extremely dangerous to humans in all of the Jurassic Park films. However, removing all attendees by ferry while the Indominus Rex was on the other half of the island would have been time consuming, but not prohibitively difficult.

(g) The extent of Jurassic World’s control over the condition that created the risk of harm; [and]

Jurassic World scientists created the Indominus Rex, thus knew the danger it posed, which is why they had the creature in a paddock that was under the control of Jurassic World.

A Verdict for Extinction

No attorney in their right mind would let a case against Jurassic World go to trial. The prospect of a crushing judgment with punitive damages would force settlement as quickly as possible. The issue for the Plaintiffs would be ensuring the settlement is just for those injured by dinosaurs or surviving family members.

Law of the Marvel Cinematic Universe Guest Podcast on Thinking Like a Lawyer

Josh Gilliland

June 13, 2015

We were honored to sit down with Elie Mystal and Joe Patrice from Above The Law to discuss legal issues in the Marvel Cinematic Universe on their podcast Thinking Like a Lawyer on Legal Talk Network.

Law Finds a Way: Dinosaur Liability in Jurassic World

Josh Gilliland

June 7, 2015

Jurassic World asks the question: What is the liability for a zoo full of dinosaurs that start eating people? Seriously, who is their insurance carrier? Exactly how big was the retainer for the law firm representing them? Are there plaintiffs law firms that specialize in dinosaur bite cases? Do state bar associations offer certifications in dinosaur law? Will Jurassic World at least have one lawyer who does not get eaten by a dinosaur this time?

Mitigating liability would take a lawyer who is a Raptor whisperer. Generally speaking, there is strict liability for zoos where an animal injures a person. Consider the law from Alaska as an example:

(a) Except as provided in (b) of this section, a person who owns or operates a zoo is strictly liable for injury to a person or property if the injury is caused by an animal owned by or in the custody of the zoo.

(b) A person who owns or operates a zoo is not strictly liable as provided in (a) of this section if

(1) The animal that caused the injury was within the animal’s normal place of confinement at the time the injury occurred;

(2) The zoo owner or operator had posted signs at prominent places within the zoo, including at each entrance, warning that the liability of the zoo for injuries caused by animals within their normal place of confinement is limited by law; and

(3) The enclosure within which the animal was confined at the time of the injury was constructed and maintained in a manner that prevents a person who exercises ordinary care customary for a person of similar age, intelligence, and experience from contacting the animal or entering the enclosure.

1990 AK. ALS 101.

Zoos have had plenty of litigation with animals that have attacked human beings. Take a case from 1925, where a zoo had a bear chained to a tree for a feeding. A visitor walked up to the bear and fed the candy. The bear bite the plaintiff’s hand and “threw the visitor to the ground and tore flesh from her leg and hand.” Byrnes v. Jackson (1925) 140 Miss. 656, 665.

The Court explained:

It cannot be the law that the city can place in its parks ferocious and dangerous animals by which the safety, and even the lives, of the public would be endangered without requiring the city to keep such animals securely confined. As a general rule persons having animals wild by nature and of ferocious disposition are required to keep such animals confined absolutely, or pay for any damage sustained by a failure so to do.

Judge Ethridge, Supreme Court of Mississippi, Byrnes v Jackson, at *670.

The Supreme Court of Mississippi held that the city was strictly liable for the zookeeper’s negligence in having a bear chained to a tree. Id.

What does this mean for the upcoming Jurassic World? First, the park has strict liability for injuries caused from dinosaurs that escape their normal places of confinement. Expect to see big warning signs by each dinosaur enclosure. Plus, every attendee should be signing a massive liability waiver that includes clauses such as “Can be eaten by a dinosaur, resulting in death or maiming.”

With that as a primer for the movie, get ready to eat lots of popcorn during Jurassic World.

Lawyers Assemble! Legal Issues in Age of Ultron

Josh Gilliland

June 4, 2015

Jess and I are out for justice! We take on the legal issues presented in Avengers Age of Ultron, from whether the Scarlet Witch gets a total free pass for working with HYDRA to the legality of breaking a helicarrier out of surplus. Plus we discuss some issues from Agents of SHIELD.

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